Citation Nr: 1512240
Decision Date: 03/23/15 Archive Date: 04/01/15
DOCKET NO. 13-13 135 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss disability.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a prostate disability.
4. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESSES AT HEARINGS ON APPEAL
Appellant and his spouse, daughter, brother, and sister
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The Veteran served on active duty from February 1968 to September 1969.
This appeal comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, denying service connection for bilateral hearing loss, tinnitus, and a prostate disability, and assigning a noncompensable rating for PTSD. In an April 2013 Decision Review Officer decision, the rating for PTSD was increased to 30 percent, effective December 12, 2011, the effective date of service connection.
The Veteran was afforded a hearing before a Decision Review Officer of the RO in October 2012 and a videoconference hearing before the undersigned Veterans Law Judge in October 2014. Transcripts of these hearings are of record.
The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).
The issue of entitlement to a higher initial rating for PTSD is addressed in the REMAND that follows the ORDER section of this decision.
FINDINGS OF FACT
1. No hearing loss disability in either ear was present until more than one year following the Veteran's discharge from service, and no current hearing loss disability is related to his active service.
2. No tinnitus was present until more than one year following the Veteran's discharge from service, and no current tinnitus is related to his active service.
3. No prostate disability was present during the Veteran's service and no current prostate disability is related to his active service.
4. Prostate cancer has not been present during the pendency of the claim.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2014).
2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
3. The criteria for service connection for a prostate disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2004); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The record reflects that the Veteran was provided all required notice in letters sent in December 2011 and March 2012, prior to the initial adjudication of the claims.
The Veteran's service treatment records, and post-service VA and private records have been obtained. At his hearing before the undersigned the Veteran was granted additional time to submit records showing that he has prostate cancer or linking his current prostate disorder to service. That allotted time has expired, and no such additional evidence has been submitted.
The Board notes that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) , 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83.
The Veteran was not afforded a VA examination and no VA medical opinion was obtained in response to the claim for service connection for a prostate disability. The Board has determined that VA is not required to provide an examination or obtain an opinion in response to that claim. In this regard, while the Veteran has alleged that his prostate condition is due to Agent Orange exposure in service and while he suggested that he may suffer from prostate cancer, no evidence of prostate cancer has been submitted and in any event prostate cancer is not a disease subject to presumptive service connection based on Agent Orange exposure. 38 C.F.R. § 3.309(e). While benign prostatic hypertrophy has been diagnosed, that condition is also not subject to presumptive service connection based on Agent Orange exposure. While the Veteran may submit his own medical evidence supportive of a link between Agent Orange exposure and a prostate condition, he has not done so, and VA is not required to seek such an opinion. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has not asserted and the record does not otherwise indicate a causal link between service and the Veteran's benign prostatic hypertrophy, and hence an examination addressing any link between service and his benign prostatic hypertrophy is not required.
The Veteran was afforded an examination in February 2012 addressing his bilateral hearing loss and tinnitus. The examiner reviewed the service and post-service records, noted the Veteran's assertions, provided medical opinions addressing these claimed disabilities and any relationship to service, and properly supported these opinions. Therefore, the Board finds these opinions to be adequate.
Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any additional evidence that could be obtained to substantiate the claims.
Therefore, the Board concludes that VA has met its duty to assist the Veteran in the development of the facts pertinent to the claims adjudicated herein.
Accordingly, the Board will address the merits of the claims.
Legal Criteria
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2014).
Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system, to include sensorineural hearing loss and tinnitus, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309.
Benign prostatic hypertrophy is not among the diseases subject to presumptive service connection on the basis of herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Factual Background and Analysis
The Veteran contends that his bilateral hearing loss and tinnitus developed as a result of artillery noise exposure in service. He contends that he developed a prostate condition due to exposure to Agent Orange.
Bilateral Hearing Loss and Tinnitus
The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
The Veteran contends that he was exposed to significant noise working with artillery in service, and this resulted in both hearing loss and tinnitus.
Service treatment records include records of audiometric testing upon pre-induction examination in December 1967 and upon service separation in September 1969.
Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz; 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz; and 5 decibels to the ASA units at 4000 Hertz.
The December 1967 pre-induction test is in this case labeled as ASA units. Converting these results to ISO units, the relevant findings from the two examinations (with the second unspecified and assumed to be ISO units), in pure tone thresholds in decibels at relevant Hertz levels, were as follows:
HERTZ
All in ISO units
500
1000
2000
3000
4000
Pre-Induction
December 1967
RIGHT
5
0
0
0
0
LEFT
5
0
0
15
5
Separation
September 1969
RIGHT
0
0
5
-
10
LEFT
10
5
5
-
15
The separation examination in September 1969 did not test at 3000 hertz.
The Veteran submitted private May 1998 audiometric test results from a hearing aid center, and private March 2004 audiometric test results from an ear, nose, and throat clinic. These pure tone threshold findings and speech discrimination findings are reasonably consistent with those obtained at a February 2012 VA audiology examination. No interpretation of the findings is provided in the submitted private reports.
On the February 2012 VA audiology examination, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
30
60
65
LEFT
25
30
30
50
55
Speech audiometry for that examination revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. The examiner found the pure tone test results valid for rating purposes, and found the speech discrimination scores appropriate for the Veteran. He diagnosed sensorineural hearing loss bilaterally.
The VA examiner noted that while the Veteran was exposed to artillery in the Army he worked in fire direction and control, approximately 40 yards from the artillery guns themselves. The Veteran denied civilian recreational noise exposure. He was noted to have a career as a pharmaceutical representative, which was not indicative of significant post-service noise exposure. However, a family history of hearing loss in the Veteran's brother was noted. The examiner observed that service enlistment and separation audiograms were normal and without significant auditory threshold shifts over the military service interval after adjusting for reference differences between ASA and ISO standards.
Regarding tinnitus, the Veteran reported at the examination that he began to notice tinnitus three to four years after service. The examiner opined that because tinnitus is known to be a symptom associated with hearing loss, it was at least as likely as not that the Veteran's tinnitus was a symptom associated with his hearing loss.
The Veteran, as a layperson, is not competent to address a causal link between in-service noise exposures and his claimed hearing loss or tinnitus. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).
The VA hearing loss examiner, who possesses such expertise, concluded based on the Veteran's history and documented audiometric findings from service, that the Veteran's hearing loss and associated tinnitus were not at least as likely as not causally related to service. The Board has found the opinion to be probative evidence against the claim since it was based on the examination results and a review of the Veteran's pertinent history, and was properly supported.
The Veteran's wife provided a statement dated in January 2012, indicating that the Veteran had some hearing difficulty when they met in 1976. She explained that when she spoke to him when she was behind him he would not hear her correctly. She added that since that time his difficulties with communication had grown progressively worse. This statement does not support the presence of hearing loss or tinnitus in service.
In a February 2012 statement, the Veteran indicated that his tinnitus was, "a continual high pitched ringing that I especially notice when there is very little noise."
In a separate statement submitted in February 2012, the Veteran stated the following regarding his noise exposure in service and his development of hearing loss:
I have had hearing impairment since my Vietnam tour. The sound of an 8" artillery gun firing is extremely loud. However, the personnel in the FDC [must] have excellent voice communications [and that] does not allow hearing protection. An error of one number can send a 200 lb. explosive projectile into our soldiers. The location of the FDC bunker is usually 40 to 60 yds. from these guns.
During the first 1-2 yrs. after returning from Vietnam, it was apparent that I had impaired hearing. I could hear men's voices but not women's softer softer (sic) voices very well.
Today, I can communicate with someone directly in front of me and within 6 to 10 ft. Men's voices the best. If there is water running or a background noise of any kind I have trouble understanding. [....]
A February 2012 statement by the Veteran's sister expresses her opinion that the Veteran, "developed health problems through the years due to his service in the Vietnam War." She asserted that he had "difficulty hearing" and often asked others to repeat themselves. She did not state in the letter when she believed these hearing problems began.
The Veteran also submitted a private medical opinion letter dated in November 2012. However, this opinion was based on the inaccurate factual premise that there was "no baseline audio before [the Veteran] went in [to service]." As service records clearly show and upon which the February 2012 VA examiner substantially relied, the Veteran's audiometric test during the December 1967 pre-induction examination did establish a baseline by which to gauge the impact of the Veteran's noise exposure in service. The private physician also inaccurately states, admittedly not in the clearest fashion, "Likewise, he does not know of anyone who had a genetic family hearing loss." This statement appears to be in conflict with the statement provided by the Veteran at the VA examination that his brother had hearing loss. The Board further notes that the private physician did not specifically link the Veteran's hearing problems to service. Rather, the physician merely noted the Veteran's self-report of no significant noise exposure except during service, and opined that the Veteran's hearing loss was, "consistent with noise exposure over time." For these reasons, the Board must conclude that the letter from the private physician is less probative than the VA medical opinion against the claim.
As discussed, the Veteran is not competent to address a causal link between his in-service noise exposure and subsequent development of hearing loss and tinnitus. Jandreau. At his October 2012 hearing the Veteran conceded that he was involved in "fire direction and control" rather than direct operation of artillery, and added, "I think we had them" in response to whether or not he had hearing protection in service. He then qualified this by informing that in his role "communication is so important," presumably to suggest that hearing protection was not always worn in his fire direction and control role, as he asserted in his February 2012 statement. (hearing transcript, p. 22)
Addressing onset of tinnitus at his hearing before the undersigned in April 2014, in response to the question, "And, as best as you can recollect, you've had ["ringing, buzzing, chirping in the ears"] ever since military service?" the Veteran replied simply, "Yes." (hearing transcript, p. 3) This does not explain, however, the contrary statement the Veteran made to the VA examiner in February 2012. In light of the inconsistencies in the Veteran's statements, the Board has not found his statements sufficient to establish that his tinnitus began in service and continued thereafter.
In sum, the Board finds that the preponderance of the evidence establishes that the Veteran's tinnitus and bilateral hearing loss disability developed more than one year following his discharge from service and are unrelated to his active service. Accordingly, these claims must be denied.
Prostate Disability
The evidence does not show and the Veteran has not contended that he had any prostate disorder in service or within one year after his discharge from service. The Veteran has contended that his prostate disability is causally related to Agent Orange exposure in service.
Private treatment records, including those obtained from his treating physician, Dr. H., note a long history of prostate problems, with a transurethral resection of the prostate (TURP) performed to treat diagnosed benign prostatic hypertrophy (BPH) interfering with urinary flow. Also of record is the December 1991 report pertaining to the TURP.
The Veteran and his representative at the hearing before the undersigned suggested that the Veteran may be developing cancer of the prostate, a disease that is subject to presumptive service connection on the basis of exposure to Agent Orange. They were afforded the opportunity following that hearing to submit medical evidence of cancer of the prostate, but failed to do so. Should the Veteran develop prostate cancer in the future, he should submit such evidence to VA and request VA to reopen his claim.
In essence, the evidence of a nexus between the Veteran's prostate disability and Agent Orange exposure is limited to the Veteran's own statements. This is not competent evidence of the alleged nexus since the Veteran does not possess the expertise required to identify the etiology of his prostate disability
Accordingly, the Board must also conclude that the preponderance of the evidence is against this claim.
ORDER
Service connection for bilateral hearing loss disability is denied.
Service connection for tinnitus is denied.
Service connection for a prostate disability is denied.
REMAND
On VA examinations in February 2012 and May 2014, the examiners found limited symptoms attributable to the Veteran's PTSD, with the Veteran generally functioning well in social spheres and daily activities. However, it appears from written statements and hearing testimony of the Veteran and family members that the VA examination reports do not accurately reflect the degree of severity of the Veteran's PTSD. Therefore, the Board has determined that the Veteran should be afforded another VA examination to determine the degree of severity of his PTSD.
Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:
1. Undertake appropriate development to obtain any outstanding records pertinent to the claim.
2. Then, afford the Veteran a VA examination to determine the nature and extent of all impairment from the Veteran's PTSD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed.
Upon addressing the severity of the Veteran's PTSD, the examiner must specifically address the Veteran's history of assaultive behavior against family members, as reflected in the Veteran's own statements and in statements by family members at October 2012 and October 2014 hearings, as well as in the his wife's October 2012 written statement. The examiner should address the Veteran's wife's assertions in that October 2012 statement that the Veteran "many times" hit her and then contended afterwards that he had no memory of the incidents. The examiner should address whether these reported assaults and asserted blackouts are attributable to the Veteran's PTSD.
The RO or the AMC should ensure that the examiner provides all information required for rating purposes.
The rationale for all opinions expressed must also be provided.
3. Undertake any other indicated development.
4. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond thereto.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs